Judge Goes to Trial

Texas Judge Goes to Trial Over Execution

The New York Times by MICHAEL BRICK - August 18, 2009

SAN ANTONIO, TX — The highest-ranking criminal judge in Texas, the woman who presides over the most active execution chamber in the country, sat at a defense table on Monday to face charges of intentionally denying a condemned man access to the legal system. The judge, Sharon Keller of the Texas Court of Criminal Appeals, took her seat before a gallery crowded with bloggers, lawyers and death penalty protesters. Outside the courthouse, demonstrators called for her ouster. Inside, lawyers on both sides emphasized that capital punishment was not on trial. But to some, Judge Keller has come to embody the practice. An intensely private former member of the Dallas County District Attorney’s Office, she won election to the court in 1994 and to the post of presiding judge in 2000. She has cultivated a reputation for rulings favorable to the prosecution in death penalty cases. On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case. Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf. Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed. As the story behind the execution spread, defense lawyers, editorial boards and legislators called for Judge Keller’s removal. In February, the State Commission on Judicial Conduct filed formal charges. The case was assigned to a special master, Judge David Berchelmann Jr. of the district court here in Bexar County, for the civil fact-finding proceeding that opened Monday.

In written arguments, the commission contends that Judge Keller circumvented normal procedures, which provide for after-hours appeals in capital cases. Judge Keller responds that the lawyers for the inmate, Michael Richard, a convicted murderer who made no claim of innocence, should have filed their paperwork with the assigned duty judge rather than trying to go through the clerk’s office. The trial, expected to last most of the week, promises to unfold as a finely wrought dance around the details of an afternoon’s timeline. At issue are such intricacies as whether the words “court” and “clerk” were used interchangeably and the extent to which the inmate’s lawyers conveyed the computer problems that delayed their paperwork. At the end of the proceeding, Judge Berchelmann will make recommendations to the commission, which in turn will consider further action. The commission has the power to censure a judge or to recommend removal by a tribunal. As the lawyers presented their opening arguments Monday, Judge Keller slumped a bit in her chair. “This is not a referendum or a debate or a poll concerning the death penalty,” said John J. McKetta, the examiner presenting the commission’s case, who argued that Judge Keller had proved incompetent to administer capital punishment with the necessary gravity, discretion and care. “If all she did was field a call where somebody said, ‘I’ve forgotten what the closing time is,’ and she said, ‘Five o’clock, don’t you remember?,’ we shouldn’t be here today,” Mr. McKetta said.

A lawyer for Judge Keller, Charles L. Babcock, argued that the entire case amounted to a few innocent, misunderstood words spoken on the telephone. “Judge Keller is an honorable, competent, popularly elected judge who believes in and follows the rule of law,” Mr. Babcock said. After opening arguments, the commission called witnesses including Judge Cheryl Johnson of the Court of Criminal Appeals, the assigned duty judge on the night of the execution. Judge Johnson testified that she had waited after closing time but never received a call. “If I had known that they had asked for time, I would have granted it,” she said of Mr. Richard’s lawyers. “It’s an execution.” When the hearing broke, Judge Keller, 56, walked to the elevator in silence, accompanied by lawyers, escorted by deputies and trailed by protesters.